Earlier this week the Justice Department filed its
motion to dismiss and supporting memorandum in Committee on Oversight and Government Reform v. Holder. The motion was expected, and the arguments are not a surprise.

DOJ argues that the court lacks Article III jurisdiction because the case presents a political question and that separation-of-powers principles counsel against the case moving forward. In short, DOJ says that the political branches should work this out. According to the Department, this is especially so with regard to material on internal deliberations regarding the Department's responses to congressional inquiries for substantive material on the program.

DOJ also argued that the court lacks subject matter jurisdiction and that the Committee has no cause of action. It says that the Committee brought the case under 28 U.S.C. Sec. 1331, but that given the history of that provision and 28 U.S.C. Sec. 1365, the court lacks jurisdiction. In particular, DOJ argues that Congress enacted 1365, giving the court jurisdiction over Senate subpoena enforcement actions, after Congress was foiled by the old amount-in-controversy in 1331. (Congress asserted no claim for monetary damages in that case.) Congress later removed the amount-in-controversy requirement, but DOJ argues that 1365, with its careful language limiting jurisdiction to cases brought by the Senate (not the House), trumps. (Otherwise 1365 would be a nullity.) If so, the court lacks jurisdiction over the House Committee's suit. Morever, DOJ says that the Committee has no cause of action, because the Declaratory Judgment Act contains no independent cause of action (contrary to the D.C. District court's own relatively recent prior ruling in Miers) and because the Constitution grants no independent cause of action.